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How to Avoid a ‘Nuclear’ Disaster: Fast-Track Judges

Debate has been raging about the “nuclear” option — the plan by Republican Senators to prohibit the filibuster of judicial nominations. The Republicans suggest that filibustering judicial nominations is unconstitutional. Although the constitutional claim is weak, there is a strong argument that judges deserve their day in court — or in this case, before the Senate. Significant delay hurts not only the potential judge, but also the entire justice system.

The nuclear option, however, is not the only alternative. A system could be established that both preserves the rights of the minority and ensures timely consideration of judicial nominees. The Senate could create a fast-track system for judges, modeled after the fast-track process used for trade agreements and the budget.

The judicial fast-track process would work like this: The president would decide whether to invoke the fast-track process for a particular nominee. Once a nominee’s papers were received by the Judiciary Committee, the committee would have 60 days to vote up or down on the nomination. If the Judiciary Committee did not do so within 60 days, the nomination would be reported out of the committee automatically to the full Senate.

Then, if the Senate did not consider the nomination within 60 days, any Member of the Senate would have a right to bring the nomination to the floor for consideration. Floor consideration would then be limited to 30 hours of debate. This would ensure a timely Senate vote on judicial nominees.

To protect minority rights in the Senate, judicial nominees considered under the fast-track process would have to be approved by 60 votes. If the nominee did not receive 60 votes, consideration of the nominee would stop and the nominee would not be reconsidered by the Senate, unless he was reappointed by the president.

Whom does this process benefit? Everyone. The president would be assured of a vote on his nominees, and the minority in the Senate would still be able to block judges who failed to garner the support of at least 60 Members. In addition, the judicial branch would benefit since judges would be considered in a more efficient manner, presumably leading to a reduction in judicial vacancies. It seems to be a fair deal.

Some might argue that judicial nominees should not be treated any differently than any other presidential nominee. But the judicial branch of government, while an equal branch, does not have the same power to defend its interests. Unlike the executive branch, the judicial branch cannot “fight” for nominees. It must rely on the executive branch to fight for it.

For that matter, it cannot decide cases against the government as “punishment” for a backlog of cases. It cannot hold the president and Members of the Senate in contempt for failing to support a nominee.

At the same time, the executive branch may not be willing to expend its political capital to ensure the timely consideration of judicial branch nominees. It may want to reserve that capital for its own nominees and for Supreme Court appointments. Due respect to the coordinate branch of government requires that Senate nominees not languish in committee, on the Senate floor, or based on a “hold” by one Senator.

In addition to ensuring timely consideration of judicial nominees, the fast-track process also protects minority rights. These rights have become a fundamental part of consideration of all business in the United States Senate.

In my view, the protection of minority rights is essential because it ensures that important legislation and important nominations are thoroughly considered. In the judicial context, it also encourages presidents to appoint judges with more broadly acceptable judicial ideologies. Nonideological judges who are acceptable to a super-majority in the Senate will likely produce less judicial activism and more thoughtful consideration of cases.

A meltdown in the Senate serves the interests of no one. A non-nuclear alternative is the best option for preserving minority rights, ensuring speedy consideration of judicial nominees, and improving of justice system.

Donald B. Tobin is an assistant professor of law at Ohio State University’s Moritz College of Law.

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